Legal experts criticise Scott Morrison's use of 'draconian' law

Immigration Minister Scott Morrison's use of an anti-whistleblowing section of the Crimes Act is draconian and has created serious risks for government workers who speak out, legal experts say.

Section 70 of the Crimes Act was used by Mr Morrison against 10 Save the Children staff on Nauru accused of misusing privileged information. The section prohibits any person employed by the Commonwealth to send information to a non-government officer. The penalty is two years' imprisonment.

Human rights lawyer Julian Burnside said it was hypocritical of Mr Morrison to use a "dangerous law" to prohibit whistleblowing when it suited him, while contemporaneously providing confidential information to a journalist about claims of Save The Children staff encouraging asylum seekers to self-harm.

"It's hypocritical and it's precisely what I expect from this minister who is willing to betray his own declared values in order to achieve shabby political objectives," Mr Burnside said.

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Mr Morrison's referral of the 10 workers to the AFP came only days after serious allegations of abuse of women and children emerged on the island. Last Friday, he initiated an independent investigation into both issues.

The AFP has now been asked to investigate Mr Morrison under the same law by Greens immigration spokeswoman, Sarah Hanson-Young, who says he and his staff may have contravened the section by supplying select information from a Transfield security report to a journalist.

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Media law expert Peter Bartlett said it was rare for the government to pursue workers under Section 70, calling it "draconian".

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"I have not seen it used for a number of years, but from time to time we have had cause to look at that section and be very concerned about the risks that [the] section creates for sources and journalists," said Mr Bartlett, who is a partner at law firm Minter Ellison.

"Clearly the media relies on confidential sources and where action is taken against alleged sources, it has the effect of intimidating other potential sources to remain quiet."

In 2007, a former senior Customs worker Allan Kessing was charged and convicted under Section 70 for leaking two damning reports on the security of Sydney Airport to The Australian.

Mr Kessing has continually denied he leaked the documents but his revelations have since prompted an inquiry and a $200 million upgrade in airport security. He received a nine-month suspended sentence.

Immigration spokesman Richard Marles said it was "extraordinary behaviour" by Mr Morrison.

"They're happy to put censored material all over the newspapers but when there is a question which they find hard to answer, at that moment it seems to become an operational matter and they can't talk about it," Mr Marles told Sky News.

Save The Children has still not been provided with the intelligence report published in News Corp publications, while all 10 members of staff accused under Section 70 remain off the island.